Judgement at Heritage

Scholars at a recent Heritage Foundation lecture debated whether judicial activism is a “value-neutral” label for judges’ actions or an aspersion cast on some of their decisions.

Their comments were made in light of former Harvard University professor Cass Sunstein’s 2006 book Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America. Sunstein was confirmed last year to head the Obama Administration’s Office of Information and Regulatory Affairs (OIRA); he taught at the University of Chicago at the time of publication.

“When people criticize judges as activist, they mean just this: The court is not following the right understanding of the Constitution,” he writes (emphasis in original). “To label a decision ‘activist’ is to label it wrong.”

“On a different account, the word ‘activist’ is purely descriptive, and a decision that is activist is not necessarily wrong.”

“People are free to use the term ‘activist’ however they wish, so long as listeners understand what they mean,” writes Sunstein. “… To reduce that risk and prevent confusion I suggest that it is best to measure judicial activism by seeing how often a court strikes down the actions of other parts of government, especially those of Congress.”

At Heritage, the Foundation’s Senior Legal Fellow Robert Alt argued, in contrast, that judicial activism is “properly understood” as “a sin both of omission and commission.”

“It [judicial activism] is not a function of outcomes but one of interpretation and it does not, necessarily, under my definition, involve striking down laws but may occur when a judge applies his or her own policy preferences to uphold a statute or other government action which is clearly forbidden by the Constitution,” he argued.

Alt referred to former Judge J. Michael Luttig’s characterization of the value-neutral argument as “sophomoric.” “Remember, it’s sophomoric to think that invalidation of a statute equals judicial activism,” the New York Times Magazine quotes Luttig in 2003. “Judicial activism means deciding a case based on one’s own personal predilections, regardless. …”

(Judge Luttig would later leave the U.S. 4th Circuit Court of Appeals for Boeing.)

For Alt, “methodology matters.” “Yes, originalism and textualism are difficult,” he asserts. “Yes…they are not formulaic and at times in difficult cases, Justices can let their biases get the better of them—even in a textualist or an originalist mode–but these methods are superior, both normatively and in terms of avoiding the pitfalls of bias,” Alt said.

In contrast, George Washington University professor Jeffrey Rosen argued at Heritage that this is “a term that is so malleable—the definition shifts so frequently—that I think it’s hard to dispute that it always depends on whose ox is being gored and both liberals and conservatives have applied the term selectively and tend to embrace it when they like the results and not when they don’t.”

In addition, Prof. Rosen argues, Alt’s definition of judicial activism is not the traditional definition used by both conservatives and liberals since the progressive era.

“What is the traditional definition of activism that liberals and conservatives embraced, starting in the 1910s and 20s?” he asked. “It’s the idea of relying on the courts to reverse your political defeats, asking judges to strike down laws based on questionable constitutional theories, seeking from the courts victories that you’re unable to win in the political arena.”

“In the mid-80s, thanks largely to the inspirational visionary work of Heritage fellows like Ed Meese, the originalist movement got up and running and conservatives changed their definition of activism,” he later added. “They said, it’s just activist if you’re not following the text and original meaning of the Constitution. It doesn’t matter if you strike down lots of laws. You have to strike down those laws if they clash with text and original meaning.”

Notably, the law professor’s “traditional definition” only spans around sixty to seventy years of America’s more than 200 years of jurisprudence (and existence) and says little about judges’ motivations for making activist decisions.

When asked by this correspondent to clarify more narrowly what a political defeat means from the side of the judge and not the public, Prof. Rosen reiterated his definition: “I guess I’d say…it’s an attempt to win from the courts victories that you can’t achieve in the political arena, so that encompasses both striking down laws after you’ve unsuccessfully argued against them and also encompasses trying to get the judges to impose contested principles that the legislatures won’t actually pass.”

“Who really wants more out of the Courts today?” Prof. Rosen had earlier asked. “And I think you have to confess that it’s really conservatives.”

“You’re frustrated by these regulations that Congress and the states are passing over your objections,” he said. “ You’re now turning to the courts to reverse your political defeats.”

“You know, good luck to you…some of these arguments are strong, others are not so strong but to deny that it’s activism seems to me a semantic distinction that is not very useful.”

Prof. Rosen supported Sunstein’s definition of judicial activism and said that he was in favor of judges deferring in cases where the Constitutional violation is not compelling to both sides of the political aisle. “I agree [with Alt] that it’s selective to only count up the striking down of federal laws—that’s half the story—but you should count up the striking down of federal and state laws, because indeed this was the traditional definition of activism that people embraced,” he said.

“So-and it’s true, it’s a neutral definition. That’s why Sunstein embraces it,” said Prof. Rosen. “It’s not saying whether this activism is good or bad—I don’t think anyone would deny that Brown v Board of Education was an activist decision, but the claim is that it’s justified activism.”

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